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Employment Law

Legal guidance - compliance - software

11kBW , 16 JUN 2015

Peripatetic workers

Peripatetic workers
James Goudie QC

Spanish employers refused to count as 'working time' within the meaning of the Working Time Directive the time that their employees spend each day travelling from home to their first customer and from their last customer to their home. In an Opinion delivered on 11 June 2015, in Case C-266/14, Advocate General Bot has advised that the Directive should be interpreted as meaning that the time that peripatetic workers, that is to say workers who are not assigned to a fixed or habitual place of work, spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes constitutes 'working time'.

Advocate General Bot observed that the Directive does not provide for any intermediate category between 'working time' and 'rest periods'; that it does not provide for 'grey periods' interposed between working time and rest periods; and that the CJEU has adopted a two-pillar approach, whereby anything not covered by the concept of 'working time' is covered by the concept of 'rest period', and vice versa.

The definition of 'working time' is based on three criteria, which, in the light of the case-law of the Court, it appears necessary to regard as cumulative: (i) a spatial criterion (to be at the workplace); (ii) an authority criterion (to be at the disposal of the employer); and (iii) a professional criterion (to be carrying out his activity or duties). The failure to take into account as 'working time' the time which peripatetic workers spend travelling from home to the first customer designated by their employer and from the last customer designated by their employer to their homes is contrary to the Directive in so far as, in the case of that category of worker, the three criteria are met.

Peripatetic workers may be defined as being workers who are not assigned a fixed or habitual place of work. Such workers are therefore required to work at different premises every day. It follows from that definition that travelling for those workers is an integral part of being a peripatetic worker and therefore inherent in the performance of their activity. Travelling by those workers is a necessary means of providing their services to the customers designated by their employer. Such travelling must therefore be regarded as forming part of the activity of those workers.

When peripatetic workers travel from home to their first customer and from the last customer to their homes they are not outside the scope of their employer's management power. The travelling is done in the context of the hierarchical relationship which links them to their employer. The workers are in fact travelling to customers that have been determined by their employer and in order to provide services for the benefit of their employer. It is not therefore only when peripatetic workers are at the job site that they are subject to the instructions of their employer.

Therefore, in Advocate General Bot's opinion, the third and second criteria were met. He also regarded the first, spatial, criterion as being met.

Travelling is an integral part of being a peripatetic worker, a place of work cannot be reduced to the physical presence of the employees on customers' premises. It follows that when they use a means of transport to go to a customer designated by their employer, at whatever time during their working day, peripatetic workers must be considered to be 'at work'. When examining whether in the specific context of peripatetic workers the criteria in the definition of 'working time' are met or not, there is no need to differentiate between, on the one hand, journeys from those workers' homes to a customer, and, on the other hand, journeys the workers make between customers. It is not disputed that travelling by the workers between customers is considered to form part of the workers' working time. Moreover, in the absence of a fixed or habitual place of work the departure and arrival points of the daily journeys are those workers' homes.
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